Fixer-upper: Estate must be probated first

DEAR BENNY: My father-in-law passed away a couple of years ago. Because of various emotional and financial reasons, my husband and I are just taking or trying to take over the house. It needs a lot of work, but we can’t apply for any assistance until the house is in our name. How should we go about getting that done? My husband and I also live there now. –Angela

DEAR ANGELA: State laws differ on this issue, so my answer has to be general in nature.

Did your father-in-law have a last will and testament? How was title held on the date of his death? Is (or was) your mother-in-law alive when he died?

These are the questions that you should be prepared to answer when you speak with an attorney about your situation.

Let’s assume that your father-in-law held title as joint tenants (or in some states it is called tenants by the entirety) with your mother-in-law. When he died, the house automatically was owned by your mother-in-law; this is known as a transfer by operation of law. If she died after her husband, we have to determine her situation. Did she have a will? Was her estate probated?

But let’s suppose the father-in-law died after his wife. If title was in his name alone, then — whether or not he had a will — you have to go to your local probate court. If he had a will, the court will order that the house be transferred pursuant to his instructions. If he did not have a will (called intestate) then the judge will have to comply with your state’s intestacy laws. Generally, property goes to a spouse, but if the spouse is not living, then to children. This is where your attorney should be able to assist you.

Bottom line: If a person dies and title is in his/her name only, in order to get good title you have to probate his/her estate. If you don’t do this, you will not be able to refinance the house or sell it.

DEAR BENNY: Recently a storm knocked over a beautiful 20-foot-tall pine tree in front of my condo unit, which has changed the front appearance and view of my unit. Citing lack of funds, the board of directors has planted a small bush where the tree once stood. It seems to me that I am entitled to a similar tree to maintain the original appearance present when I purchased the unit five years ago. –Mike

DEAR MIKE: I agree that a bush is not a tree and clearly changes the appearance of your house. But I cannot agree that you are entitled to a similar tree. The board of directors has the right to make a business decision. They did not have the funds required for the tree, and you are bound by their decision.

One suggestion: If you really want a tree, why not buy one and arrange to plant it yourself?

DEAR BENNY: My mother-in-law passed away in April 2000. Her home, which is paid for, was placed in a trust fund. The trust states that the youngest son is to live in the home until he moves or is deceased, then the house is to be sold and divided among the five grandchildren.

The trust states that the youngest son is to pay for all property taxes, homeowners insurance and maintenance of the property. No money was designated to support this trust fund, and the son pays no rent.

The son has defaulted in paying the property taxes, which the daughter, who is the executor, has had to pay three times in the past 10 years. Additionally, the house has not been maintained according to the requirements of the trust fund. Can he be told to maintain the property or the house will be sold, and that if he cannot purchase it, he will have to move out? –Jackie

DEAR JACKIE: The youngest son is not honoring the terms of the trust. Presumably, the trust names a person who is the trustee. That person should have a long talk with the youngest son. Explain that he has the right to live in the house rent-free, but he also has certain financial obligations, which he is not performing.

The trustee should make it clear that if the youngest son does not (1) reimburse those who have made the payments that he was required to make and (2) start making all future payments immediately, the trustee will have no alternative but to go to a local court seeking termination (or modification) of the trust agreement.

Our courts always want to honor and enforce written documents, such as a last will and testament, or a trust agreement. If the younger son were making the required payments, a judge would be extremely reluctant to terminate the terms and conditions of the trust. But since the trust requirements are not being honored, I believe that a judge would be willing to terminate the trust, and require the younger son to either buy the house or move out.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.